Time Warp: April 25, 2007
On this day in 2007, the District Court for the Southern District of New York held that downloading a digital music file does not constitute a public performance within the meaning of the U.S. Copyright Act. In U.S. v. ASCAP, 485 F. Supp. 2d 438 (S.D.N.Y, 2007), an ASCAP rate-setting proceeding with AOL, RealNetworks, and Yahoo! Inc., the court held that a digital download is not a “performance” as defined by the Act because there is no perceptible “rendition” when a digital file is copied from one computer to another. Rather, it is a mechanical reproduction in the form of a “digital phonorecord delivery,” as defined in § 115 of the Act. The court further noted that while it is theoretically possible that a transmission could constitute both a public performance and a reproduction, “Congress did not intend the two uses to overlap to the extent proposed by ASCAP in the present case.”
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